Tshilidzi v Makhado
| Jurisdiction | South Africa |
| Judge | Duvenhage AJ |
| Court | Venda Provincial Division |
| Citation | 2006 JDR 0414 (V) |
| Docket Number | 358/2005 |
Duvenhage AJ:
The abovementioned application came before me on the 14th of October 2005 as one of urgency. I refused the application and made the following order:
Application refused.
Applicant to pay the costs of 1st Respondent.
No order as to costs for 2nd, 3rd, 4th, 5th and 6th Respondents.
Only the founding affidavit of Applicant was filed at the time of the application. I was informed from the Bar that the application was served on the 1st Respondent during the early hours of the 14th of October 2005 and during the previous day on Respondents 2 to 6.
Mr Sikhwari appeared on behalf of Applicant. 1st Respondent was not represented and 2nd to 6th Respondents were represented by Mr Mushasha.
Mr Mushasha at the beginning of the proceedings made it clear that 2nd to 6th Respondents will abide by the decision of the Court. The application by Applicant was for a rule nisi, details which will be set out hereunder.
Applicant applied for an order:
That the application be treated as one of urgency.
2006 JDR 0414 p3
Duvenhage AJ
That a rule nisi with return date 24 November 2005 with the following terms be issued:
Ordering and directing the cancellation of the oral agreement entered into by and between the 1st Respondent and the Applicant in respect of the inter provincial transfer of the 1st Respondent and the Applicant.
Ordering and directing the 2nd and/or 4th Respondent to cancel and/or withdraw the inter provincial transfer between 1st Respondent and Applicant.
Cost of the application if opposed.
Applicant avers in her founding affidavit that she is employed by the Department of Education for Limpopo Province. Which is not entirely correct. Applicant was formerly employed by the Department of Education, Limpopo. At the time of the application she was employed by the Department of Education for North West Province, although she still received her salary from the Department of Education Limpopo Province. Applicant wrongly cited 4th Respondent as "MEC of the Department of Education for North West Province (Mpumalanga)".
2006 JDR 0414 p4
Duvenhage AJ
All the facts in the founding affidavit are not set out very clearly, however, the application of Applicant entails the following:
She was employed as a teacher in the Department of Education for Limpopo Province. During January 2005 Applicant and the 1st Respondent entered into an oral agreement in terms whereof there has to be a cross-transfer between Applicant and 1st Respondent, meaning that Applicant would be transferred from MANENZHE PRIMARY SCHOOL in Limpopo Province to the MAIKAO PRIMARY SCHOOL in North West Province and the 1st Respondent from the last mentioned school to the first mentioned school.
2nd to 6th Respondents were cited by Applicant because they were the respective MEC's of the Departments of Education and the School Governing Bodies and also the Minister of Education (6th Respondent).
Applicant only asked for an order against 1st, 2nd and 4th Respondents. When asked during argument why the 3rd, 5th and 6th Respondents were cited, the reply was "because they have an interest in the matter". In view of the fact that Mr Mushasha informed me that the 2nd to 6th Respondents will abide by the decision of the Court and also that if the application is dismissed 2nd to 6th Respondents would not asked for an order as to costs, it is not necessary to further consider the application
2006 JDR 0414 p5
Duvenhage AJ
against 2nd to 6th Respondents.
Proceeding with the facts, it is not clear from Applicant's founding affidavit whether she initiated the application for the cross-transfer or whether it was 1st Respondent. However, on the 1st of May 2005 and after all the relevant MEC's and School Governing Bodies agreed to the cross-transfer, Applicant started teaching at the MAIKAO PRIMARY SCHOOL and 1st Respondent, according to the founding affidavit, was posted at MANENZHE PRIMARY SCHOOL, presumably in terms of the agreed transfer.
When the application started on the 14th of October 2005, I asked Mr Sikhwari to address me on urgency. The following facts, in this regard, as set out in the founding affidavit of Applicant were brought to the attention of Mr Sikhwari.
In paragraph 31 of the founding affidavit Applicant avers that the matter is urgent because:
The transfer has been partially effected and she is likely (my underlining) to be removed from the pay-roll of 2nd Respondent. The inter provincial transfer process may be completed...
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